William H. Pryor, Jr., Chief Judge of the United States Court of Appeals for the Eleventh Circuit, writes at The Public Discourse:
Today, judges still take the same oath that Chief Justice Marshall swore. Judges swear before God to uphold the Constitution and laws of the United States wherever it leads. We do not swear to follow a prediction or speculation about what future generations will favor.
When modern society substitutes the so-called judgment of history for the historical standard of the oath of office, it raises almost unanswerable questions. How will history “judge” any public official? And how often will any public official’s work matter to any legal historian?
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When someone argues that the so-called judgment of history matters in some case, he betrays his desired result in a high-profile controversy regardless of what the judge’s oath to uphold the law requires. But asking how future generations will view us is a fool’s errand. The person who asks that question is only projecting his hope about what future generations will think. Yet no one knows whether future generations will be wise or wicked. Nor do we know whether they will be any less divided in their views than previous generations have been.
The most abominable opinions in the history of the Supreme Court were written by jurists who probably thought they stood on the right side of history. Roger Taney probably thought so when he penned Dred Scott. Yet his notorious opinion helped lead to the Civil War. Oliver Wendell Holmes undoubtedly thought he was on the right side of history when he wrote, “Three generations of imbeciles are enough” in Buck v. Bell. But Americans thankfully have since abandoned state-enforced eugenics. Harry Blackmun probably thought history would look kindly on his opinion in Roe v. Wade. A half-century later, the Supreme Court overruled it as an “egregious” mistake. And in each period, the jurist’s peers celebrated those opinions.
